Manoharlal and anr Vs Bheerulal and ors - Citation 750811 - Court Judgment

Judgment:

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			'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100; <a href="/act/51108/indian-easements-act-1882-complete-act">Easements Act, 1882</a> - Sections 35',
			'appealno' => 'Second Appeal No. 352 of 1965',
			'appellant' => 'Manoharlal and anr.',
			'authreffered' => '',
			'casename' => 'Manoharlal and anr. Vs. Bheerulal and ors.',
			'casenote' => 'Easements Act, 1882 - Section (b)(a)--Threatened disturbance--Quantum of--Held, relief rightly refused in absence of allegation &amp; proof.
; Even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quia timet action, would on general principle be granted only if the threatend disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial dimunition of the same. It was therefore necessary in the present case for the plaintiffs to have established that there would be substantial dimunition of light and air coming through the window in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiff. In absence of an allegation and proof to that effect the learned District Judge was in my opinion right in refusing the relief or injunction in respect of the windows. - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
			'caseanalysis' => null,
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			'counselplain' => ' M.M. Vyas, Adv.',
			'counseldef' => ' M.C. Bhandari, Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1971-07-08',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' C.M. Lodha, J.',
			'judgement' => '<p style="text-align: justify;">C.M. Lodha, J. </p><p style="text-align: justify;">1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.</p><p style="text-align: justify;">2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.</p><p style="text-align: justify;">3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.</p><p style="text-align: justify;">4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.</p><p style="text-align: justify;">5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.</p><p style="text-align: justify;">6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.</p><p style="text-align: justify;">7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.</p><p style="text-align: justify;">Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--</p><p style="text-align: justify;">'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-</p><p style="text-align: justify;"> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;</p><p style="text-align: justify;"> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' </p><p style="text-align: justify;">8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,</p><p style="text-align: justify;">In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.</p><p style="text-align: justify;">9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.</p><p style="text-align: justify;">10. Leave to appeal to Division Bench is prayed for but refused.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'AIR1972Raj31; 1971(4)WLN287',
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			'respondent' => 'Bheerulal and ors.',
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		'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100; <a href="/act/51108/indian-easements-act-1882-complete-act">Easements Act, 1882</a> - Sections 35',
		'appealno' => 'Second Appeal No. 352 of 1965',
		'appellant' => 'Manoharlal and anr.',
		'authreffered' => '',
		'casename' => 'Manoharlal and anr. Vs. Bheerulal and ors.',
		'casenote' => 'Easements Act, 1882 - Section (b)(a)--Threatened disturbance--Quantum of--Held, relief rightly refused in absence of allegation &amp; proof.
; Even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quia timet action, would on general principle be granted only if the threatend disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial dimunition of the same. It was therefore necessary in the present case for the plaintiffs to have established that there would be substantial dimunition of light and air coming through the window in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiff. In absence of an allegation and proof to that effect the learned District Judge was in my opinion right in refusing the relief or injunction in respect of the windows. - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' M.M. Vyas, Adv.',
		'counseldef' => ' M.C. Bhandari, Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1971-07-08',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' C.M. Lodha, J.',
		'judgement' => '<p>C.M. Lodha, J. </p><p>1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.</p><p>2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.</p><p>3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.</p><p>4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.</p><p>5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.</p><p>6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.</p><p>7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.</p><p>Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--</p><p>'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-</p><p> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;</p><p> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' </p><p>8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,</p><p>In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.</p><p>9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.</p><p>10. Leave to appeal to Division Bench is prayed for but refused.<p></p><p>',
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	(int) 0 => '<p>C.M. Lodha, J. ',
	(int) 1 => '<p>1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.',
	(int) 2 => '<p>2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.',
	(int) 3 => '<p>3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.',
	(int) 4 => '<p>4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.',
	(int) 5 => '<p>5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.',
	(int) 6 => '<p>6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.',
	(int) 7 => '<p>7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
	(int) 8 => '<p>Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--',
	(int) 9 => '<p>'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-',
	(int) 10 => '<p> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;',
	(int) 11 => '<p> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' ',
	(int) 12 => '<p>8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,',
	(int) 13 => '<p>In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.',
	(int) 14 => '<p>9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.',
	(int) 15 => '<p>10. Leave to appeal to Division Bench is prayed for but refused.<p>',
	(int) 16 => '<p>'
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C.M. Lodha, J.

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			'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100; <a href="/act/51108/indian-easements-act-1882-complete-act">Easements Act, 1882</a> - Sections 35',
			'appealno' => 'Second Appeal No. 352 of 1965',
			'appellant' => 'Manoharlal and anr.',
			'authreffered' => '',
			'casename' => 'Manoharlal and anr. Vs. Bheerulal and ors.',
			'casenote' => 'Easements Act, 1882 - Section (b)(a)--Threatened disturbance--Quantum of--Held, relief rightly refused in absence of allegation &amp; proof.
; Even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quia timet action, would on general principle be granted only if the threatend disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial dimunition of the same. It was therefore necessary in the present case for the plaintiffs to have established that there would be substantial dimunition of light and air coming through the window in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiff. In absence of an allegation and proof to that effect the learned District Judge was in my opinion right in refusing the relief or injunction in respect of the windows. - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
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			'counselplain' => ' M.M. Vyas, Adv.',
			'counseldef' => ' M.C. Bhandari, Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1971-07-08',
			'deposition' => 'Appeal dismissed',
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			'judge' => ' C.M. Lodha, J.',
			'judgement' => '<p style="text-align: justify;">C.M. Lodha, J. </p><p style="text-align: justify;">1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.</p><p style="text-align: justify;">2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.</p><p style="text-align: justify;">3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.</p><p style="text-align: justify;">4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.</p><p style="text-align: justify;">5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.</p><p style="text-align: justify;">6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.</p><p style="text-align: justify;">7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.</p><p style="text-align: justify;">Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--</p><p style="text-align: justify;">'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-</p><p style="text-align: justify;"> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;</p><p style="text-align: justify;"> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' </p><p style="text-align: justify;">8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,</p><p style="text-align: justify;">In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.</p><p style="text-align: justify;">9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.</p><p style="text-align: justify;">10. Leave to appeal to Division Bench is prayed for but refused.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appealno' => 'Second Appeal No. 352 of 1965',
		'appellant' => 'Manoharlal and anr.',
		'authreffered' => '',
		'casename' => 'Manoharlal and anr. Vs. Bheerulal and ors.',
		'casenote' => 'Easements Act, 1882 - Section (b)(a)--Threatened disturbance--Quantum of--Held, relief rightly refused in absence of allegation &amp; proof.
; Even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quia timet action, would on general principle be granted only if the threatend disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial dimunition of the same. It was therefore necessary in the present case for the plaintiffs to have established that there would be substantial dimunition of light and air coming through the window in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiff. In absence of an allegation and proof to that effect the learned District Judge was in my opinion right in refusing the relief or injunction in respect of the windows. - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
		'caseanalysis' => null,
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		'counselplain' => ' M.M. Vyas, Adv.',
		'counseldef' => ' M.C. Bhandari, Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1971-07-08',
		'deposition' => 'Appeal dismissed',
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		'judge' => ' C.M. Lodha, J.',
		'judgement' => '<p>C.M. Lodha, J. </p><p>1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.</p><p>2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.</p><p>3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.</p><p>4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.</p><p>5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.</p><p>6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.</p><p>7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.</p><p>Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--</p><p>'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-</p><p> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;</p><p> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' </p><p>8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,</p><p>In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.</p><p>9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.</p><p>10. Leave to appeal to Division Bench is prayed for but refused.<p></p><p>',
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	(int) 1 => '<p>1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.',
	(int) 2 => '<p>2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.',
	(int) 3 => '<p>3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.',
	(int) 4 => '<p>4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.',
	(int) 5 => '<p>5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.',
	(int) 6 => '<p>6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.',
	(int) 7 => '<p>7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
	(int) 8 => '<p>Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--',
	(int) 9 => '<p>'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-',
	(int) 10 => '<p> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;',
	(int) 11 => '<p> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' ',
	(int) 12 => '<p>8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,',
	(int) 13 => '<p>In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.',
	(int) 14 => '<p>9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.',
	(int) 15 => '<p>10. Leave to appeal to Division Bench is prayed for but refused.<p>',
	(int) 16 => '<p>'
)
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1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.

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	'title_for_layout' => 'Manoharlal and anr Vs Bheerulal and ors - Citation 750811 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '750811',
			'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100; <a href="/act/51108/indian-easements-act-1882-complete-act">Easements Act, 1882</a> - Sections 35',
			'appealno' => 'Second Appeal No. 352 of 1965',
			'appellant' => 'Manoharlal and anr.',
			'authreffered' => '',
			'casename' => 'Manoharlal and anr. Vs. Bheerulal and ors.',
			'casenote' => 'Easements Act, 1882 - Section (b)(a)--Threatened disturbance--Quantum of--Held, relief rightly refused in absence of allegation &amp; proof.
; Even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quia timet action, would on general principle be granted only if the threatend disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial dimunition of the same. It was therefore necessary in the present case for the plaintiffs to have established that there would be substantial dimunition of light and air coming through the window in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiff. In absence of an allegation and proof to that effect the learned District Judge was in my opinion right in refusing the relief or injunction in respect of the windows. - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' M.M. Vyas, Adv.',
			'counseldef' => ' M.C. Bhandari, Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1971-07-08',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' C.M. Lodha, J.',
			'judgement' => '<p style="text-align: justify;">C.M. Lodha, J. </p><p style="text-align: justify;">1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.</p><p style="text-align: justify;">2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.</p><p style="text-align: justify;">3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.</p><p style="text-align: justify;">4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.</p><p style="text-align: justify;">5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.</p><p style="text-align: justify;">6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.</p><p style="text-align: justify;">7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.</p><p style="text-align: justify;">Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--</p><p style="text-align: justify;">'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-</p><p style="text-align: justify;"> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;</p><p style="text-align: justify;"> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' </p><p style="text-align: justify;">8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,</p><p style="text-align: justify;">In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.</p><p style="text-align: justify;">9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.</p><p style="text-align: justify;">10. Leave to appeal to Division Bench is prayed for but refused.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1972Raj31; 1971(4)WLN287',
			'ratiodecidendi' => '',
			'respondent' => 'Bheerulal and ors.',
			'sub' => 'Property;Civil',
			'link' => null,
			'circuit' => null
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		(int) 0 => '750811',
		(int) 1 => 'manoharlal-anr-vs-bheerulal-ors'
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$title_for_layout = 'Manoharlal and anr Vs Bheerulal and ors - Citation 750811 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750811',
		'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100; <a href="/act/51108/indian-easements-act-1882-complete-act">Easements Act, 1882</a> - Sections 35',
		'appealno' => 'Second Appeal No. 352 of 1965',
		'appellant' => 'Manoharlal and anr.',
		'authreffered' => '',
		'casename' => 'Manoharlal and anr. Vs. Bheerulal and ors.',
		'casenote' => 'Easements Act, 1882 - Section (b)(a)--Threatened disturbance--Quantum of--Held, relief rightly refused in absence of allegation &amp; proof.
; Even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quia timet action, would on general principle be granted only if the threatend disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial dimunition of the same. It was therefore necessary in the present case for the plaintiffs to have established that there would be substantial dimunition of light and air coming through the window in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiff. In absence of an allegation and proof to that effect the learned District Judge was in my opinion right in refusing the relief or injunction in respect of the windows. - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' M.M. Vyas, Adv.',
		'counseldef' => ' M.C. Bhandari, Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1971-07-08',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' C.M. Lodha, J.',
		'judgement' => '<p>C.M. Lodha, J. </p><p>1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.</p><p>2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.</p><p>3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.</p><p>4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.</p><p>5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.</p><p>6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.</p><p>7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.</p><p>Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--</p><p>'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-</p><p> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;</p><p> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' </p><p>8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,</p><p>In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.</p><p>9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.</p><p>10. Leave to appeal to Division Bench is prayed for but refused.<p></p><p>',
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	(int) 0 => '<p>C.M. Lodha, J. ',
	(int) 1 => '<p>1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.',
	(int) 2 => '<p>2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.',
	(int) 3 => '<p>3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.',
	(int) 4 => '<p>4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.',
	(int) 5 => '<p>5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.',
	(int) 6 => '<p>6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.',
	(int) 7 => '<p>7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
	(int) 8 => '<p>Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--',
	(int) 9 => '<p>'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-',
	(int) 10 => '<p> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;',
	(int) 11 => '<p> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' ',
	(int) 12 => '<p>8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,',
	(int) 13 => '<p>In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.',
	(int) 14 => '<p>9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.',
	(int) 15 => '<p>10. Leave to appeal to Division Bench is prayed for but refused.<p>',
	(int) 16 => '<p>'
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2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.

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	'title_for_layout' => 'Manoharlal and anr Vs Bheerulal and ors - Citation 750811 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '750811',
			'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100; <a href="/act/51108/indian-easements-act-1882-complete-act">Easements Act, 1882</a> - Sections 35',
			'appealno' => 'Second Appeal No. 352 of 1965',
			'appellant' => 'Manoharlal and anr.',
			'authreffered' => '',
			'casename' => 'Manoharlal and anr. Vs. Bheerulal and ors.',
			'casenote' => 'Easements Act, 1882 - Section (b)(a)--Threatened disturbance--Quantum of--Held, relief rightly refused in absence of allegation &amp; proof.
; Even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quia timet action, would on general principle be granted only if the threatend disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial dimunition of the same. It was therefore necessary in the present case for the plaintiffs to have established that there would be substantial dimunition of light and air coming through the window in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiff. In absence of an allegation and proof to that effect the learned District Judge was in my opinion right in refusing the relief or injunction in respect of the windows. - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
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			'counselplain' => ' M.M. Vyas, Adv.',
			'counseldef' => ' M.C. Bhandari, Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1971-07-08',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' C.M. Lodha, J.',
			'judgement' => '<p style="text-align: justify;">C.M. Lodha, J. </p><p style="text-align: justify;">1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.</p><p style="text-align: justify;">2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.</p><p style="text-align: justify;">3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.</p><p style="text-align: justify;">4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.</p><p style="text-align: justify;">5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.</p><p style="text-align: justify;">6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.</p><p style="text-align: justify;">7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.</p><p style="text-align: justify;">Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--</p><p style="text-align: justify;">'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-</p><p style="text-align: justify;"> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;</p><p style="text-align: justify;"> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' </p><p style="text-align: justify;">8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,</p><p style="text-align: justify;">In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.</p><p style="text-align: justify;">9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.</p><p style="text-align: justify;">10. Leave to appeal to Division Bench is prayed for but refused.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100; <a href="/act/51108/indian-easements-act-1882-complete-act">Easements Act, 1882</a> - Sections 35',
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; Even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quia timet action, would on general principle be granted only if the threatend disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial dimunition of the same. It was therefore necessary in the present case for the plaintiffs to have established that there would be substantial dimunition of light and air coming through the window in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiff. In absence of an allegation and proof to that effect the learned District Judge was in my opinion right in refusing the relief or injunction in respect of the windows. - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
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		'counselplain' => ' M.M. Vyas, Adv.',
		'counseldef' => ' M.C. Bhandari, Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1971-07-08',
		'deposition' => 'Appeal dismissed',
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		'judge' => ' C.M. Lodha, J.',
		'judgement' => '<p>C.M. Lodha, J. </p><p>1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.</p><p>2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.</p><p>3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.</p><p>4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.</p><p>5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.</p><p>6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.</p><p>7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.</p><p>Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--</p><p>'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-</p><p> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;</p><p> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' </p><p>8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,</p><p>In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.</p><p>9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.</p><p>10. Leave to appeal to Division Bench is prayed for but refused.<p></p><p>',
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	(int) 0 => '<p>C.M. Lodha, J. ',
	(int) 1 => '<p>1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.',
	(int) 2 => '<p>2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.',
	(int) 3 => '<p>3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.',
	(int) 4 => '<p>4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.',
	(int) 5 => '<p>5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.',
	(int) 6 => '<p>6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.',
	(int) 7 => '<p>7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
	(int) 8 => '<p>Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--',
	(int) 9 => '<p>'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-',
	(int) 10 => '<p> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;',
	(int) 11 => '<p> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' ',
	(int) 12 => '<p>8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,',
	(int) 13 => '<p>In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.',
	(int) 14 => '<p>9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.',
	(int) 15 => '<p>10. Leave to appeal to Division Bench is prayed for but refused.<p>',
	(int) 16 => '<p>'
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3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.

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	'title_for_layout' => 'Manoharlal and anr Vs Bheerulal and ors - Citation 750811 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '750811',
			'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100; <a href="/act/51108/indian-easements-act-1882-complete-act">Easements Act, 1882</a> - Sections 35',
			'appealno' => 'Second Appeal No. 352 of 1965',
			'appellant' => 'Manoharlal and anr.',
			'authreffered' => '',
			'casename' => 'Manoharlal and anr. Vs. Bheerulal and ors.',
			'casenote' => 'Easements Act, 1882 - Section (b)(a)--Threatened disturbance--Quantum of--Held, relief rightly refused in absence of allegation &amp; proof.
; Even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quia timet action, would on general principle be granted only if the threatend disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial dimunition of the same. It was therefore necessary in the present case for the plaintiffs to have established that there would be substantial dimunition of light and air coming through the window in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiff. In absence of an allegation and proof to that effect the learned District Judge was in my opinion right in refusing the relief or injunction in respect of the windows. - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
			'caseanalysis' => null,
			'casesref' => '',
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			'counselplain' => ' M.M. Vyas, Adv.',
			'counseldef' => ' M.C. Bhandari, Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1971-07-08',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' C.M. Lodha, J.',
			'judgement' => '<p style="text-align: justify;">C.M. Lodha, J. </p><p style="text-align: justify;">1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.</p><p style="text-align: justify;">2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.</p><p style="text-align: justify;">3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.</p><p style="text-align: justify;">4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.</p><p style="text-align: justify;">5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.</p><p style="text-align: justify;">6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.</p><p style="text-align: justify;">7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.</p><p style="text-align: justify;">Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--</p><p style="text-align: justify;">'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-</p><p style="text-align: justify;"> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;</p><p style="text-align: justify;"> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' </p><p style="text-align: justify;">8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,</p><p style="text-align: justify;">In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.</p><p style="text-align: justify;">9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.</p><p style="text-align: justify;">10. Leave to appeal to Division Bench is prayed for but refused.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appellant' => 'Manoharlal and anr.',
		'authreffered' => '',
		'casename' => 'Manoharlal and anr. Vs. Bheerulal and ors.',
		'casenote' => 'Easements Act, 1882 - Section (b)(a)--Threatened disturbance--Quantum of--Held, relief rightly refused in absence of allegation &amp; proof.
; Even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quia timet action, would on general principle be granted only if the threatend disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial dimunition of the same. It was therefore necessary in the present case for the plaintiffs to have established that there would be substantial dimunition of light and air coming through the window in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiff. In absence of an allegation and proof to that effect the learned District Judge was in my opinion right in refusing the relief or injunction in respect of the windows. - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' M.M. Vyas, Adv.',
		'counseldef' => ' M.C. Bhandari, Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1971-07-08',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' C.M. Lodha, J.',
		'judgement' => '<p>C.M. Lodha, J. </p><p>1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.</p><p>2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.</p><p>3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.</p><p>4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.</p><p>5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.</p><p>6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.</p><p>7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.</p><p>Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--</p><p>'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-</p><p> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;</p><p> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' </p><p>8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,</p><p>In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.</p><p>9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.</p><p>10. Leave to appeal to Division Bench is prayed for but refused.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1972Raj31; 1971(4)WLN287',
		'ratiodecidendi' => '',
		'respondent' => 'Bheerulal and ors.',
		'sub' => 'Property;Civil',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>C.M. Lodha, J. ',
	(int) 1 => '<p>1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.',
	(int) 2 => '<p>2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.',
	(int) 3 => '<p>3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.',
	(int) 4 => '<p>4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.',
	(int) 5 => '<p>5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.',
	(int) 6 => '<p>6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.',
	(int) 7 => '<p>7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
	(int) 8 => '<p>Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--',
	(int) 9 => '<p>'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-',
	(int) 10 => '<p> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;',
	(int) 11 => '<p> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' ',
	(int) 12 => '<p>8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,',
	(int) 13 => '<p>In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.',
	(int) 14 => '<p>9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.',
	(int) 15 => '<p>10. Leave to appeal to Division Bench is prayed for but refused.<p>',
	(int) 16 => '<p>'
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4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.

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	'title_for_layout' => 'Manoharlal and anr Vs Bheerulal and ors - Citation 750811 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750811',
			'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100; <a href="/act/51108/indian-easements-act-1882-complete-act">Easements Act, 1882</a> - Sections 35',
			'appealno' => 'Second Appeal No. 352 of 1965',
			'appellant' => 'Manoharlal and anr.',
			'authreffered' => '',
			'casename' => 'Manoharlal and anr. Vs. Bheerulal and ors.',
			'casenote' => 'Easements Act, 1882 - Section (b)(a)--Threatened disturbance--Quantum of--Held, relief rightly refused in absence of allegation &amp; proof.
; Even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quia timet action, would on general principle be granted only if the threatend disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial dimunition of the same. It was therefore necessary in the present case for the plaintiffs to have established that there would be substantial dimunition of light and air coming through the window in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiff. In absence of an allegation and proof to that effect the learned District Judge was in my opinion right in refusing the relief or injunction in respect of the windows. - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' M.M. Vyas, Adv.',
			'counseldef' => ' M.C. Bhandari, Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1971-07-08',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' C.M. Lodha, J.',
			'judgement' => '<p style="text-align: justify;">C.M. Lodha, J. </p><p style="text-align: justify;">1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.</p><p style="text-align: justify;">2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.</p><p style="text-align: justify;">3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.</p><p style="text-align: justify;">4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.</p><p style="text-align: justify;">5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.</p><p style="text-align: justify;">6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.</p><p style="text-align: justify;">7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.</p><p style="text-align: justify;">Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--</p><p style="text-align: justify;">'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-</p><p style="text-align: justify;"> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;</p><p style="text-align: justify;"> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' </p><p style="text-align: justify;">8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,</p><p style="text-align: justify;">In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.</p><p style="text-align: justify;">9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.</p><p style="text-align: justify;">10. Leave to appeal to Division Bench is prayed for but refused.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100; <a href="/act/51108/indian-easements-act-1882-complete-act">Easements Act, 1882</a> - Sections 35',
		'appealno' => 'Second Appeal No. 352 of 1965',
		'appellant' => 'Manoharlal and anr.',
		'authreffered' => '',
		'casename' => 'Manoharlal and anr. Vs. Bheerulal and ors.',
		'casenote' => 'Easements Act, 1882 - Section (b)(a)--Threatened disturbance--Quantum of--Held, relief rightly refused in absence of allegation &amp; proof.
; Even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quia timet action, would on general principle be granted only if the threatend disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial dimunition of the same. It was therefore necessary in the present case for the plaintiffs to have established that there would be substantial dimunition of light and air coming through the window in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiff. In absence of an allegation and proof to that effect the learned District Judge was in my opinion right in refusing the relief or injunction in respect of the windows. - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
		'caseanalysis' => null,
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		'counselplain' => ' M.M. Vyas, Adv.',
		'counseldef' => ' M.C. Bhandari, Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1971-07-08',
		'deposition' => 'Appeal dismissed',
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		'judge' => ' C.M. Lodha, J.',
		'judgement' => '<p>C.M. Lodha, J. </p><p>1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.</p><p>2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.</p><p>3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.</p><p>4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.</p><p>5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.</p><p>6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.</p><p>7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.</p><p>Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--</p><p>'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-</p><p> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;</p><p> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' </p><p>8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,</p><p>In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.</p><p>9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.</p><p>10. Leave to appeal to Division Bench is prayed for but refused.<p></p><p>',
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		'pubs' => 'AIR1972Raj31; 1971(4)WLN287',
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	(int) 0 => '<p>C.M. Lodha, J. ',
	(int) 1 => '<p>1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.',
	(int) 2 => '<p>2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.',
	(int) 3 => '<p>3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.',
	(int) 4 => '<p>4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.',
	(int) 5 => '<p>5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.',
	(int) 6 => '<p>6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.',
	(int) 7 => '<p>7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
	(int) 8 => '<p>Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--',
	(int) 9 => '<p>'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-',
	(int) 10 => '<p> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;',
	(int) 11 => '<p> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' ',
	(int) 12 => '<p>8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,',
	(int) 13 => '<p>In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.',
	(int) 14 => '<p>9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.',
	(int) 15 => '<p>10. Leave to appeal to Division Bench is prayed for but refused.<p>',
	(int) 16 => '<p>'
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5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.

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			'id' => '750811',
			'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100; <a href="/act/51108/indian-easements-act-1882-complete-act">Easements Act, 1882</a> - Sections 35',
			'appealno' => 'Second Appeal No. 352 of 1965',
			'appellant' => 'Manoharlal and anr.',
			'authreffered' => '',
			'casename' => 'Manoharlal and anr. Vs. Bheerulal and ors.',
			'casenote' => 'Easements Act, 1882 - Section (b)(a)--Threatened disturbance--Quantum of--Held, relief rightly refused in absence of allegation &amp; proof.
; Even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quia timet action, would on general principle be granted only if the threatend disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial dimunition of the same. It was therefore necessary in the present case for the plaintiffs to have established that there would be substantial dimunition of light and air coming through the window in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiff. In absence of an allegation and proof to that effect the learned District Judge was in my opinion right in refusing the relief or injunction in respect of the windows. - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' M.M. Vyas, Adv.',
			'counseldef' => ' M.C. Bhandari, Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1971-07-08',
			'deposition' => 'Appeal dismissed',
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			'findings' => null,
			'judge' => ' C.M. Lodha, J.',
			'judgement' => '<p style="text-align: justify;">C.M. Lodha, J. </p><p style="text-align: justify;">1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.</p><p style="text-align: justify;">2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.</p><p style="text-align: justify;">3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.</p><p style="text-align: justify;">4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.</p><p style="text-align: justify;">5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.</p><p style="text-align: justify;">6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.</p><p style="text-align: justify;">7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.</p><p style="text-align: justify;">Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--</p><p style="text-align: justify;">'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-</p><p style="text-align: justify;"> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;</p><p style="text-align: justify;"> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' </p><p style="text-align: justify;">8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,</p><p style="text-align: justify;">In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.</p><p style="text-align: justify;">9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.</p><p style="text-align: justify;">10. Leave to appeal to Division Bench is prayed for but refused.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100; <a href="/act/51108/indian-easements-act-1882-complete-act">Easements Act, 1882</a> - Sections 35',
		'appealno' => 'Second Appeal No. 352 of 1965',
		'appellant' => 'Manoharlal and anr.',
		'authreffered' => '',
		'casename' => 'Manoharlal and anr. Vs. Bheerulal and ors.',
		'casenote' => 'Easements Act, 1882 - Section (b)(a)--Threatened disturbance--Quantum of--Held, relief rightly refused in absence of allegation &amp; proof.
; Even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quia timet action, would on general principle be granted only if the threatend disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial dimunition of the same. It was therefore necessary in the present case for the plaintiffs to have established that there would be substantial dimunition of light and air coming through the window in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiff. In absence of an allegation and proof to that effect the learned District Judge was in my opinion right in refusing the relief or injunction in respect of the windows. - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
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		'counselplain' => ' M.M. Vyas, Adv.',
		'counseldef' => ' M.C. Bhandari, Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1971-07-08',
		'deposition' => 'Appeal dismissed',
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		'judge' => ' C.M. Lodha, J.',
		'judgement' => '<p>C.M. Lodha, J. </p><p>1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.</p><p>2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.</p><p>3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.</p><p>4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.</p><p>5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.</p><p>6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.</p><p>7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.</p><p>Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--</p><p>'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-</p><p> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;</p><p> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' </p><p>8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,</p><p>In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.</p><p>9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.</p><p>10. Leave to appeal to Division Bench is prayed for but refused.<p></p><p>',
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	(int) 0 => '<p>C.M. Lodha, J. ',
	(int) 1 => '<p>1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.',
	(int) 2 => '<p>2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.',
	(int) 3 => '<p>3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.',
	(int) 4 => '<p>4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.',
	(int) 5 => '<p>5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.',
	(int) 6 => '<p>6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.',
	(int) 7 => '<p>7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
	(int) 8 => '<p>Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--',
	(int) 9 => '<p>'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-',
	(int) 10 => '<p> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;',
	(int) 11 => '<p> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' ',
	(int) 12 => '<p>8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,',
	(int) 13 => '<p>In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.',
	(int) 14 => '<p>9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.',
	(int) 15 => '<p>10. Leave to appeal to Division Bench is prayed for but refused.<p>',
	(int) 16 => '<p>'
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6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.

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			'id' => '750811',
			'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100; <a href="/act/51108/indian-easements-act-1882-complete-act">Easements Act, 1882</a> - Sections 35',
			'appealno' => 'Second Appeal No. 352 of 1965',
			'appellant' => 'Manoharlal and anr.',
			'authreffered' => '',
			'casename' => 'Manoharlal and anr. Vs. Bheerulal and ors.',
			'casenote' => 'Easements Act, 1882 - Section (b)(a)--Threatened disturbance--Quantum of--Held, relief rightly refused in absence of allegation &amp; proof.
; Even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quia timet action, would on general principle be granted only if the threatend disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial dimunition of the same. It was therefore necessary in the present case for the plaintiffs to have established that there would be substantial dimunition of light and air coming through the window in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiff. In absence of an allegation and proof to that effect the learned District Judge was in my opinion right in refusing the relief or injunction in respect of the windows. - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' M.M. Vyas, Adv.',
			'counseldef' => ' M.C. Bhandari, Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1971-07-08',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' C.M. Lodha, J.',
			'judgement' => '<p style="text-align: justify;">C.M. Lodha, J. </p><p style="text-align: justify;">1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.</p><p style="text-align: justify;">2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.</p><p style="text-align: justify;">3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.</p><p style="text-align: justify;">4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.</p><p style="text-align: justify;">5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.</p><p style="text-align: justify;">6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.</p><p style="text-align: justify;">7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.</p><p style="text-align: justify;">Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--</p><p style="text-align: justify;">'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-</p><p style="text-align: justify;"> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;</p><p style="text-align: justify;"> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' </p><p style="text-align: justify;">8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,</p><p style="text-align: justify;">In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.</p><p style="text-align: justify;">9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.</p><p style="text-align: justify;">10. Leave to appeal to Division Bench is prayed for but refused.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1972Raj31; 1971(4)WLN287',
			'ratiodecidendi' => '',
			'respondent' => 'Bheerulal and ors.',
			'sub' => 'Property;Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'manoharlal-anr-vs-bheerulal-ors',
	'args' => array(
		(int) 0 => '750811',
		(int) 1 => 'manoharlal-anr-vs-bheerulal-ors'
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)
$title_for_layout = 'Manoharlal and anr Vs Bheerulal and ors - Citation 750811 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750811',
		'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100; <a href="/act/51108/indian-easements-act-1882-complete-act">Easements Act, 1882</a> - Sections 35',
		'appealno' => 'Second Appeal No. 352 of 1965',
		'appellant' => 'Manoharlal and anr.',
		'authreffered' => '',
		'casename' => 'Manoharlal and anr. Vs. Bheerulal and ors.',
		'casenote' => 'Easements Act, 1882 - Section (b)(a)--Threatened disturbance--Quantum of--Held, relief rightly refused in absence of allegation &amp; proof.
; Even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quia timet action, would on general principle be granted only if the threatend disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial dimunition of the same. It was therefore necessary in the present case for the plaintiffs to have established that there would be substantial dimunition of light and air coming through the window in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiff. In absence of an allegation and proof to that effect the learned District Judge was in my opinion right in refusing the relief or injunction in respect of the windows. - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' M.M. Vyas, Adv.',
		'counseldef' => ' M.C. Bhandari, Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1971-07-08',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' C.M. Lodha, J.',
		'judgement' => '<p>C.M. Lodha, J. </p><p>1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.</p><p>2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.</p><p>3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.</p><p>4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.</p><p>5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.</p><p>6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.</p><p>7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.</p><p>Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--</p><p>'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-</p><p> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;</p><p> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' </p><p>8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,</p><p>In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.</p><p>9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.</p><p>10. Leave to appeal to Division Bench is prayed for but refused.<p></p><p>',
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		'pubs' => 'AIR1972Raj31; 1971(4)WLN287',
		'ratiodecidendi' => '',
		'respondent' => 'Bheerulal and ors.',
		'sub' => 'Property;Civil',
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		'circuit' => null
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$content = array(
	(int) 0 => '<p>C.M. Lodha, J. ',
	(int) 1 => '<p>1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.',
	(int) 2 => '<p>2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.',
	(int) 3 => '<p>3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.',
	(int) 4 => '<p>4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.',
	(int) 5 => '<p>5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.',
	(int) 6 => '<p>6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.',
	(int) 7 => '<p>7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
	(int) 8 => '<p>Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--',
	(int) 9 => '<p>'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-',
	(int) 10 => '<p> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;',
	(int) 11 => '<p> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' ',
	(int) 12 => '<p>8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,',
	(int) 13 => '<p>In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.',
	(int) 14 => '<p>9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.',
	(int) 15 => '<p>10. Leave to appeal to Division Bench is prayed for but refused.<p>',
	(int) 16 => '<p>'
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7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.

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			'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100; <a href="/act/51108/indian-easements-act-1882-complete-act">Easements Act, 1882</a> - Sections 35',
			'appealno' => 'Second Appeal No. 352 of 1965',
			'appellant' => 'Manoharlal and anr.',
			'authreffered' => '',
			'casename' => 'Manoharlal and anr. Vs. Bheerulal and ors.',
			'casenote' => 'Easements Act, 1882 - Section (b)(a)--Threatened disturbance--Quantum of--Held, relief rightly refused in absence of allegation &amp; proof.
; Even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quia timet action, would on general principle be granted only if the threatend disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial dimunition of the same. It was therefore necessary in the present case for the plaintiffs to have established that there would be substantial dimunition of light and air coming through the window in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiff. In absence of an allegation and proof to that effect the learned District Judge was in my opinion right in refusing the relief or injunction in respect of the windows. - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
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			'counselplain' => ' M.M. Vyas, Adv.',
			'counseldef' => ' M.C. Bhandari, Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1971-07-08',
			'deposition' => 'Appeal dismissed',
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			'judge' => ' C.M. Lodha, J.',
			'judgement' => '<p style="text-align: justify;">C.M. Lodha, J. </p><p style="text-align: justify;">1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.</p><p style="text-align: justify;">2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.</p><p style="text-align: justify;">3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.</p><p style="text-align: justify;">4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.</p><p style="text-align: justify;">5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.</p><p style="text-align: justify;">6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.</p><p style="text-align: justify;">7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.</p><p style="text-align: justify;">Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--</p><p style="text-align: justify;">'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-</p><p style="text-align: justify;"> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;</p><p style="text-align: justify;"> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' </p><p style="text-align: justify;">8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,</p><p style="text-align: justify;">In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.</p><p style="text-align: justify;">9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.</p><p style="text-align: justify;">10. Leave to appeal to Division Bench is prayed for but refused.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'casenote' => 'Easements Act, 1882 - Section (b)(a)--Threatened disturbance--Quantum of--Held, relief rightly refused in absence of allegation &amp; proof.
; Even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quia timet action, would on general principle be granted only if the threatend disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial dimunition of the same. It was therefore necessary in the present case for the plaintiffs to have established that there would be substantial dimunition of light and air coming through the window in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiff. In absence of an allegation and proof to that effect the learned District Judge was in my opinion right in refusing the relief or injunction in respect of the windows. - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
		'caseanalysis' => null,
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		'citingcases' => '',
		'counselplain' => ' M.M. Vyas, Adv.',
		'counseldef' => ' M.C. Bhandari, Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1971-07-08',
		'deposition' => 'Appeal dismissed',
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		'judge' => ' C.M. Lodha, J.',
		'judgement' => '<p>C.M. Lodha, J. </p><p>1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.</p><p>2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.</p><p>3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.</p><p>4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.</p><p>5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.</p><p>6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.</p><p>7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.</p><p>Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--</p><p>'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-</p><p> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;</p><p> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' </p><p>8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,</p><p>In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.</p><p>9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.</p><p>10. Leave to appeal to Division Bench is prayed for but refused.<p></p><p>',
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	(int) 0 => '<p>C.M. Lodha, J. ',
	(int) 1 => '<p>1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.',
	(int) 2 => '<p>2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.',
	(int) 3 => '<p>3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.',
	(int) 4 => '<p>4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.',
	(int) 5 => '<p>5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.',
	(int) 6 => '<p>6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.',
	(int) 7 => '<p>7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
	(int) 8 => '<p>Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--',
	(int) 9 => '<p>'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-',
	(int) 10 => '<p> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;',
	(int) 11 => '<p> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' ',
	(int) 12 => '<p>8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,',
	(int) 13 => '<p>In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.',
	(int) 14 => '<p>9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.',
	(int) 15 => '<p>10. Leave to appeal to Division Bench is prayed for but refused.<p>',
	(int) 16 => '<p>'
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Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--

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	'title_for_layout' => 'Manoharlal and anr Vs Bheerulal and ors - Citation 750811 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '750811',
			'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100; <a href="/act/51108/indian-easements-act-1882-complete-act">Easements Act, 1882</a> - Sections 35',
			'appealno' => 'Second Appeal No. 352 of 1965',
			'appellant' => 'Manoharlal and anr.',
			'authreffered' => '',
			'casename' => 'Manoharlal and anr. Vs. Bheerulal and ors.',
			'casenote' => 'Easements Act, 1882 - Section (b)(a)--Threatened disturbance--Quantum of--Held, relief rightly refused in absence of allegation &amp; proof.
; Even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quia timet action, would on general principle be granted only if the threatend disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial dimunition of the same. It was therefore necessary in the present case for the plaintiffs to have established that there would be substantial dimunition of light and air coming through the window in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiff. In absence of an allegation and proof to that effect the learned District Judge was in my opinion right in refusing the relief or injunction in respect of the windows. - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' M.M. Vyas, Adv.',
			'counseldef' => ' M.C. Bhandari, Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1971-07-08',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' C.M. Lodha, J.',
			'judgement' => '<p style="text-align: justify;">C.M. Lodha, J. </p><p style="text-align: justify;">1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.</p><p style="text-align: justify;">2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.</p><p style="text-align: justify;">3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.</p><p style="text-align: justify;">4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.</p><p style="text-align: justify;">5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.</p><p style="text-align: justify;">6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.</p><p style="text-align: justify;">7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.</p><p style="text-align: justify;">Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--</p><p style="text-align: justify;">'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-</p><p style="text-align: justify;"> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;</p><p style="text-align: justify;"> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' </p><p style="text-align: justify;">8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,</p><p style="text-align: justify;">In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.</p><p style="text-align: justify;">9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.</p><p style="text-align: justify;">10. Leave to appeal to Division Bench is prayed for but refused.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'AIR1972Raj31; 1971(4)WLN287',
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			'respondent' => 'Bheerulal and ors.',
			'sub' => 'Property;Civil',
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			'circuit' => null
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		'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100; <a href="/act/51108/indian-easements-act-1882-complete-act">Easements Act, 1882</a> - Sections 35',
		'appealno' => 'Second Appeal No. 352 of 1965',
		'appellant' => 'Manoharlal and anr.',
		'authreffered' => '',
		'casename' => 'Manoharlal and anr. Vs. Bheerulal and ors.',
		'casenote' => 'Easements Act, 1882 - Section (b)(a)--Threatened disturbance--Quantum of--Held, relief rightly refused in absence of allegation &amp; proof.
; Even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quia timet action, would on general principle be granted only if the threatend disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial dimunition of the same. It was therefore necessary in the present case for the plaintiffs to have established that there would be substantial dimunition of light and air coming through the window in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiff. In absence of an allegation and proof to that effect the learned District Judge was in my opinion right in refusing the relief or injunction in respect of the windows. - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' M.M. Vyas, Adv.',
		'counseldef' => ' M.C. Bhandari, Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1971-07-08',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' C.M. Lodha, J.',
		'judgement' => '<p>C.M. Lodha, J. </p><p>1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.</p><p>2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.</p><p>3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.</p><p>4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.</p><p>5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.</p><p>6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.</p><p>7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.</p><p>Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--</p><p>'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-</p><p> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;</p><p> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' </p><p>8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,</p><p>In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.</p><p>9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.</p><p>10. Leave to appeal to Division Bench is prayed for but refused.<p></p><p>',
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		'pubs' => 'AIR1972Raj31; 1971(4)WLN287',
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		'respondent' => 'Bheerulal and ors.',
		'sub' => 'Property;Civil',
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	(int) 0 => '<p>C.M. Lodha, J. ',
	(int) 1 => '<p>1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.',
	(int) 2 => '<p>2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.',
	(int) 3 => '<p>3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.',
	(int) 4 => '<p>4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.',
	(int) 5 => '<p>5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.',
	(int) 6 => '<p>6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.',
	(int) 7 => '<p>7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
	(int) 8 => '<p>Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--',
	(int) 9 => '<p>'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-',
	(int) 10 => '<p> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;',
	(int) 11 => '<p> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' ',
	(int) 12 => '<p>8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,',
	(int) 13 => '<p>In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.',
	(int) 14 => '<p>9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.',
	(int) 15 => '<p>10. Leave to appeal to Division Bench is prayed for but refused.<p>',
	(int) 16 => '<p>'
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'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-

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	'title_for_layout' => 'Manoharlal and anr Vs Bheerulal and ors - Citation 750811 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '750811',
			'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100; <a href="/act/51108/indian-easements-act-1882-complete-act">Easements Act, 1882</a> - Sections 35',
			'appealno' => 'Second Appeal No. 352 of 1965',
			'appellant' => 'Manoharlal and anr.',
			'authreffered' => '',
			'casename' => 'Manoharlal and anr. Vs. Bheerulal and ors.',
			'casenote' => 'Easements Act, 1882 - Section (b)(a)--Threatened disturbance--Quantum of--Held, relief rightly refused in absence of allegation &amp; proof.
; Even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quia timet action, would on general principle be granted only if the threatend disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial dimunition of the same. It was therefore necessary in the present case for the plaintiffs to have established that there would be substantial dimunition of light and air coming through the window in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiff. In absence of an allegation and proof to that effect the learned District Judge was in my opinion right in refusing the relief or injunction in respect of the windows. - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
			'caseanalysis' => null,
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			'counselplain' => ' M.M. Vyas, Adv.',
			'counseldef' => ' M.C. Bhandari, Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1971-07-08',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' C.M. Lodha, J.',
			'judgement' => '<p style="text-align: justify;">C.M. Lodha, J. </p><p style="text-align: justify;">1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.</p><p style="text-align: justify;">2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.</p><p style="text-align: justify;">3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.</p><p style="text-align: justify;">4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.</p><p style="text-align: justify;">5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.</p><p style="text-align: justify;">6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.</p><p style="text-align: justify;">7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.</p><p style="text-align: justify;">Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--</p><p style="text-align: justify;">'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-</p><p style="text-align: justify;"> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;</p><p style="text-align: justify;"> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' </p><p style="text-align: justify;">8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,</p><p style="text-align: justify;">In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.</p><p style="text-align: justify;">9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.</p><p style="text-align: justify;">10. Leave to appeal to Division Bench is prayed for but refused.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1972Raj31; 1971(4)WLN287',
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			'respondent' => 'Bheerulal and ors.',
			'sub' => 'Property;Civil',
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		'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100; <a href="/act/51108/indian-easements-act-1882-complete-act">Easements Act, 1882</a> - Sections 35',
		'appealno' => 'Second Appeal No. 352 of 1965',
		'appellant' => 'Manoharlal and anr.',
		'authreffered' => '',
		'casename' => 'Manoharlal and anr. Vs. Bheerulal and ors.',
		'casenote' => 'Easements Act, 1882 - Section (b)(a)--Threatened disturbance--Quantum of--Held, relief rightly refused in absence of allegation &amp; proof.
; Even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quia timet action, would on general principle be granted only if the threatend disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial dimunition of the same. It was therefore necessary in the present case for the plaintiffs to have established that there would be substantial dimunition of light and air coming through the window in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiff. In absence of an allegation and proof to that effect the learned District Judge was in my opinion right in refusing the relief or injunction in respect of the windows. - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' M.M. Vyas, Adv.',
		'counseldef' => ' M.C. Bhandari, Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1971-07-08',
		'deposition' => 'Appeal dismissed',
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		'judge' => ' C.M. Lodha, J.',
		'judgement' => '<p>C.M. Lodha, J. </p><p>1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.</p><p>2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.</p><p>3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.</p><p>4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.</p><p>5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.</p><p>6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.</p><p>7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.</p><p>Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--</p><p>'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-</p><p> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;</p><p> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' </p><p>8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,</p><p>In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.</p><p>9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.</p><p>10. Leave to appeal to Division Bench is prayed for but refused.<p></p><p>',
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	(int) 0 => '<p>C.M. Lodha, J. ',
	(int) 1 => '<p>1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.',
	(int) 2 => '<p>2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.',
	(int) 3 => '<p>3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.',
	(int) 4 => '<p>4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.',
	(int) 5 => '<p>5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.',
	(int) 6 => '<p>6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.',
	(int) 7 => '<p>7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
	(int) 8 => '<p>Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--',
	(int) 9 => '<p>'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-',
	(int) 10 => '<p> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;',
	(int) 11 => '<p> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' ',
	(int) 12 => '<p>8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,',
	(int) 13 => '<p>In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.',
	(int) 14 => '<p>9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.',
	(int) 15 => '<p>10. Leave to appeal to Division Bench is prayed for but refused.<p>',
	(int) 16 => '<p>'
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(a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;

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	'title_for_layout' => 'Manoharlal and anr Vs Bheerulal and ors - Citation 750811 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '750811',
			'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100; <a href="/act/51108/indian-easements-act-1882-complete-act">Easements Act, 1882</a> - Sections 35',
			'appealno' => 'Second Appeal No. 352 of 1965',
			'appellant' => 'Manoharlal and anr.',
			'authreffered' => '',
			'casename' => 'Manoharlal and anr. Vs. Bheerulal and ors.',
			'casenote' => 'Easements Act, 1882 - Section (b)(a)--Threatened disturbance--Quantum of--Held, relief rightly refused in absence of allegation &amp; proof.
; Even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quia timet action, would on general principle be granted only if the threatend disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial dimunition of the same. It was therefore necessary in the present case for the plaintiffs to have established that there would be substantial dimunition of light and air coming through the window in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiff. In absence of an allegation and proof to that effect the learned District Judge was in my opinion right in refusing the relief or injunction in respect of the windows. - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
			'caseanalysis' => null,
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			'counselplain' => ' M.M. Vyas, Adv.',
			'counseldef' => ' M.C. Bhandari, Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1971-07-08',
			'deposition' => 'Appeal dismissed',
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			'judge' => ' C.M. Lodha, J.',
			'judgement' => '<p style="text-align: justify;">C.M. Lodha, J. </p><p style="text-align: justify;">1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.</p><p style="text-align: justify;">2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.</p><p style="text-align: justify;">3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.</p><p style="text-align: justify;">4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.</p><p style="text-align: justify;">5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.</p><p style="text-align: justify;">6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.</p><p style="text-align: justify;">7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.</p><p style="text-align: justify;">Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--</p><p style="text-align: justify;">'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-</p><p style="text-align: justify;"> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;</p><p style="text-align: justify;"> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' </p><p style="text-align: justify;">8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,</p><p style="text-align: justify;">In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.</p><p style="text-align: justify;">9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.</p><p style="text-align: justify;">10. Leave to appeal to Division Bench is prayed for but refused.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'respondent' => 'Bheerulal and ors.',
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		'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100; <a href="/act/51108/indian-easements-act-1882-complete-act">Easements Act, 1882</a> - Sections 35',
		'appealno' => 'Second Appeal No. 352 of 1965',
		'appellant' => 'Manoharlal and anr.',
		'authreffered' => '',
		'casename' => 'Manoharlal and anr. Vs. Bheerulal and ors.',
		'casenote' => 'Easements Act, 1882 - Section (b)(a)--Threatened disturbance--Quantum of--Held, relief rightly refused in absence of allegation &amp; proof.
; Even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quia timet action, would on general principle be granted only if the threatend disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial dimunition of the same. It was therefore necessary in the present case for the plaintiffs to have established that there would be substantial dimunition of light and air coming through the window in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiff. In absence of an allegation and proof to that effect the learned District Judge was in my opinion right in refusing the relief or injunction in respect of the windows. - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' M.M. Vyas, Adv.',
		'counseldef' => ' M.C. Bhandari, Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1971-07-08',
		'deposition' => 'Appeal dismissed',
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		'judge' => ' C.M. Lodha, J.',
		'judgement' => '<p>C.M. Lodha, J. </p><p>1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.</p><p>2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.</p><p>3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.</p><p>4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.</p><p>5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.</p><p>6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.</p><p>7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.</p><p>Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--</p><p>'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-</p><p> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;</p><p> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' </p><p>8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,</p><p>In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.</p><p>9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.</p><p>10. Leave to appeal to Division Bench is prayed for but refused.<p></p><p>',
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		'pubs' => 'AIR1972Raj31; 1971(4)WLN287',
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	(int) 0 => '<p>C.M. Lodha, J. ',
	(int) 1 => '<p>1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.',
	(int) 2 => '<p>2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.',
	(int) 3 => '<p>3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.',
	(int) 4 => '<p>4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.',
	(int) 5 => '<p>5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.',
	(int) 6 => '<p>6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.',
	(int) 7 => '<p>7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
	(int) 8 => '<p>Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--',
	(int) 9 => '<p>'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-',
	(int) 10 => '<p> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;',
	(int) 11 => '<p> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' ',
	(int) 12 => '<p>8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,',
	(int) 13 => '<p>In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.',
	(int) 14 => '<p>9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.',
	(int) 15 => '<p>10. Leave to appeal to Division Bench is prayed for but refused.<p>',
	(int) 16 => '<p>'
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(b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.'

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	'title_for_layout' => 'Manoharlal and anr Vs Bheerulal and ors - Citation 750811 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '750811',
			'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100; <a href="/act/51108/indian-easements-act-1882-complete-act">Easements Act, 1882</a> - Sections 35',
			'appealno' => 'Second Appeal No. 352 of 1965',
			'appellant' => 'Manoharlal and anr.',
			'authreffered' => '',
			'casename' => 'Manoharlal and anr. Vs. Bheerulal and ors.',
			'casenote' => 'Easements Act, 1882 - Section (b)(a)--Threatened disturbance--Quantum of--Held, relief rightly refused in absence of allegation &amp; proof.
; Even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quia timet action, would on general principle be granted only if the threatend disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial dimunition of the same. It was therefore necessary in the present case for the plaintiffs to have established that there would be substantial dimunition of light and air coming through the window in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiff. In absence of an allegation and proof to that effect the learned District Judge was in my opinion right in refusing the relief or injunction in respect of the windows. - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
			'caseanalysis' => null,
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			'counselplain' => ' M.M. Vyas, Adv.',
			'counseldef' => ' M.C. Bhandari, Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1971-07-08',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' C.M. Lodha, J.',
			'judgement' => '<p style="text-align: justify;">C.M. Lodha, J. </p><p style="text-align: justify;">1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.</p><p style="text-align: justify;">2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.</p><p style="text-align: justify;">3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.</p><p style="text-align: justify;">4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.</p><p style="text-align: justify;">5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.</p><p style="text-align: justify;">6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.</p><p style="text-align: justify;">7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.</p><p style="text-align: justify;">Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--</p><p style="text-align: justify;">'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-</p><p style="text-align: justify;"> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;</p><p style="text-align: justify;"> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' </p><p style="text-align: justify;">8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,</p><p style="text-align: justify;">In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.</p><p style="text-align: justify;">9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.</p><p style="text-align: justify;">10. Leave to appeal to Division Bench is prayed for but refused.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'respondent' => 'Bheerulal and ors.',
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		'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100; <a href="/act/51108/indian-easements-act-1882-complete-act">Easements Act, 1882</a> - Sections 35',
		'appealno' => 'Second Appeal No. 352 of 1965',
		'appellant' => 'Manoharlal and anr.',
		'authreffered' => '',
		'casename' => 'Manoharlal and anr. Vs. Bheerulal and ors.',
		'casenote' => 'Easements Act, 1882 - Section (b)(a)--Threatened disturbance--Quantum of--Held, relief rightly refused in absence of allegation &amp; proof.
; Even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quia timet action, would on general principle be granted only if the threatend disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial dimunition of the same. It was therefore necessary in the present case for the plaintiffs to have established that there would be substantial dimunition of light and air coming through the window in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiff. In absence of an allegation and proof to that effect the learned District Judge was in my opinion right in refusing the relief or injunction in respect of the windows. - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
		'caseanalysis' => null,
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		'counselplain' => ' M.M. Vyas, Adv.',
		'counseldef' => ' M.C. Bhandari, Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1971-07-08',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' C.M. Lodha, J.',
		'judgement' => '<p>C.M. Lodha, J. </p><p>1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.</p><p>2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.</p><p>3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.</p><p>4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.</p><p>5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.</p><p>6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.</p><p>7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.</p><p>Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--</p><p>'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-</p><p> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;</p><p> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' </p><p>8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,</p><p>In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.</p><p>9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.</p><p>10. Leave to appeal to Division Bench is prayed for but refused.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'AIR1972Raj31; 1971(4)WLN287',
		'ratiodecidendi' => '',
		'respondent' => 'Bheerulal and ors.',
		'sub' => 'Property;Civil',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>C.M. Lodha, J. ',
	(int) 1 => '<p>1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.',
	(int) 2 => '<p>2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.',
	(int) 3 => '<p>3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.',
	(int) 4 => '<p>4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.',
	(int) 5 => '<p>5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.',
	(int) 6 => '<p>6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.',
	(int) 7 => '<p>7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
	(int) 8 => '<p>Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--',
	(int) 9 => '<p>'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-',
	(int) 10 => '<p> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;',
	(int) 11 => '<p> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' ',
	(int) 12 => '<p>8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,',
	(int) 13 => '<p>In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.',
	(int) 14 => '<p>9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.',
	(int) 15 => '<p>10. Leave to appeal to Division Bench is prayed for but refused.<p>',
	(int) 16 => '<p>'
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8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,

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	'title_for_layout' => 'Manoharlal and anr Vs Bheerulal and ors - Citation 750811 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '750811',
			'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100; <a href="/act/51108/indian-easements-act-1882-complete-act">Easements Act, 1882</a> - Sections 35',
			'appealno' => 'Second Appeal No. 352 of 1965',
			'appellant' => 'Manoharlal and anr.',
			'authreffered' => '',
			'casename' => 'Manoharlal and anr. Vs. Bheerulal and ors.',
			'casenote' => 'Easements Act, 1882 - Section (b)(a)--Threatened disturbance--Quantum of--Held, relief rightly refused in absence of allegation &amp; proof.
; Even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quia timet action, would on general principle be granted only if the threatend disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial dimunition of the same. It was therefore necessary in the present case for the plaintiffs to have established that there would be substantial dimunition of light and air coming through the window in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiff. In absence of an allegation and proof to that effect the learned District Judge was in my opinion right in refusing the relief or injunction in respect of the windows. - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' M.M. Vyas, Adv.',
			'counseldef' => ' M.C. Bhandari, Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1971-07-08',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' C.M. Lodha, J.',
			'judgement' => '<p style="text-align: justify;">C.M. Lodha, J. </p><p style="text-align: justify;">1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.</p><p style="text-align: justify;">2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.</p><p style="text-align: justify;">3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.</p><p style="text-align: justify;">4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.</p><p style="text-align: justify;">5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.</p><p style="text-align: justify;">6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.</p><p style="text-align: justify;">7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.</p><p style="text-align: justify;">Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--</p><p style="text-align: justify;">'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-</p><p style="text-align: justify;"> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;</p><p style="text-align: justify;"> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' </p><p style="text-align: justify;">8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,</p><p style="text-align: justify;">In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.</p><p style="text-align: justify;">9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.</p><p style="text-align: justify;">10. Leave to appeal to Division Bench is prayed for but refused.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100; <a href="/act/51108/indian-easements-act-1882-complete-act">Easements Act, 1882</a> - Sections 35',
		'appealno' => 'Second Appeal No. 352 of 1965',
		'appellant' => 'Manoharlal and anr.',
		'authreffered' => '',
		'casename' => 'Manoharlal and anr. Vs. Bheerulal and ors.',
		'casenote' => 'Easements Act, 1882 - Section (b)(a)--Threatened disturbance--Quantum of--Held, relief rightly refused in absence of allegation &amp; proof.
; Even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quia timet action, would on general principle be granted only if the threatend disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial dimunition of the same. It was therefore necessary in the present case for the plaintiffs to have established that there would be substantial dimunition of light and air coming through the window in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiff. In absence of an allegation and proof to that effect the learned District Judge was in my opinion right in refusing the relief or injunction in respect of the windows. - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
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		'counselplain' => ' M.M. Vyas, Adv.',
		'counseldef' => ' M.C. Bhandari, Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1971-07-08',
		'deposition' => 'Appeal dismissed',
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		'judge' => ' C.M. Lodha, J.',
		'judgement' => '<p>C.M. Lodha, J. </p><p>1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.</p><p>2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.</p><p>3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.</p><p>4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.</p><p>5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.</p><p>6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.</p><p>7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.</p><p>Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--</p><p>'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-</p><p> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;</p><p> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' </p><p>8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,</p><p>In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.</p><p>9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.</p><p>10. Leave to appeal to Division Bench is prayed for but refused.<p></p><p>',
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	(int) 0 => '<p>C.M. Lodha, J. ',
	(int) 1 => '<p>1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.',
	(int) 2 => '<p>2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.',
	(int) 3 => '<p>3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.',
	(int) 4 => '<p>4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.',
	(int) 5 => '<p>5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.',
	(int) 6 => '<p>6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.',
	(int) 7 => '<p>7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
	(int) 8 => '<p>Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--',
	(int) 9 => '<p>'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-',
	(int) 10 => '<p> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;',
	(int) 11 => '<p> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' ',
	(int) 12 => '<p>8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,',
	(int) 13 => '<p>In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.',
	(int) 14 => '<p>9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.',
	(int) 15 => '<p>10. Leave to appeal to Division Bench is prayed for but refused.<p>',
	(int) 16 => '<p>'
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In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.

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	'title_for_layout' => 'Manoharlal and anr Vs Bheerulal and ors - Citation 750811 - Court Judgment | ',
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			'id' => '750811',
			'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100; <a href="/act/51108/indian-easements-act-1882-complete-act">Easements Act, 1882</a> - Sections 35',
			'appealno' => 'Second Appeal No. 352 of 1965',
			'appellant' => 'Manoharlal and anr.',
			'authreffered' => '',
			'casename' => 'Manoharlal and anr. Vs. Bheerulal and ors.',
			'casenote' => 'Easements Act, 1882 - Section (b)(a)--Threatened disturbance--Quantum of--Held, relief rightly refused in absence of allegation &amp; proof.
; Even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quia timet action, would on general principle be granted only if the threatend disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial dimunition of the same. It was therefore necessary in the present case for the plaintiffs to have established that there would be substantial dimunition of light and air coming through the window in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiff. In absence of an allegation and proof to that effect the learned District Judge was in my opinion right in refusing the relief or injunction in respect of the windows. - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
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			'counselplain' => ' M.M. Vyas, Adv.',
			'counseldef' => ' M.C. Bhandari, Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1971-07-08',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' C.M. Lodha, J.',
			'judgement' => '<p style="text-align: justify;">C.M. Lodha, J. </p><p style="text-align: justify;">1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.</p><p style="text-align: justify;">2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.</p><p style="text-align: justify;">3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.</p><p style="text-align: justify;">4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.</p><p style="text-align: justify;">5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.</p><p style="text-align: justify;">6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.</p><p style="text-align: justify;">7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.</p><p style="text-align: justify;">Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--</p><p style="text-align: justify;">'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-</p><p style="text-align: justify;"> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;</p><p style="text-align: justify;"> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' </p><p style="text-align: justify;">8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,</p><p style="text-align: justify;">In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.</p><p style="text-align: justify;">9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.</p><p style="text-align: justify;">10. Leave to appeal to Division Bench is prayed for but refused.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100; <a href="/act/51108/indian-easements-act-1882-complete-act">Easements Act, 1882</a> - Sections 35',
		'appealno' => 'Second Appeal No. 352 of 1965',
		'appellant' => 'Manoharlal and anr.',
		'authreffered' => '',
		'casename' => 'Manoharlal and anr. Vs. Bheerulal and ors.',
		'casenote' => 'Easements Act, 1882 - Section (b)(a)--Threatened disturbance--Quantum of--Held, relief rightly refused in absence of allegation &amp; proof.
; Even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quia timet action, would on general principle be granted only if the threatend disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial dimunition of the same. It was therefore necessary in the present case for the plaintiffs to have established that there would be substantial dimunition of light and air coming through the window in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiff. In absence of an allegation and proof to that effect the learned District Judge was in my opinion right in refusing the relief or injunction in respect of the windows. - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
		'caseanalysis' => null,
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		'counselplain' => ' M.M. Vyas, Adv.',
		'counseldef' => ' M.C. Bhandari, Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1971-07-08',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
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		'judge' => ' C.M. Lodha, J.',
		'judgement' => '<p>C.M. Lodha, J. </p><p>1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.</p><p>2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.</p><p>3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.</p><p>4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.</p><p>5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.</p><p>6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.</p><p>7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.</p><p>Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--</p><p>'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-</p><p> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;</p><p> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' </p><p>8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,</p><p>In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.</p><p>9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.</p><p>10. Leave to appeal to Division Bench is prayed for but refused.<p></p><p>',
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		'pubs' => 'AIR1972Raj31; 1971(4)WLN287',
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	(int) 0 => '<p>C.M. Lodha, J. ',
	(int) 1 => '<p>1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.',
	(int) 2 => '<p>2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.',
	(int) 3 => '<p>3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.',
	(int) 4 => '<p>4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.',
	(int) 5 => '<p>5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.',
	(int) 6 => '<p>6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.',
	(int) 7 => '<p>7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
	(int) 8 => '<p>Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--',
	(int) 9 => '<p>'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-',
	(int) 10 => '<p> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;',
	(int) 11 => '<p> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' ',
	(int) 12 => '<p>8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,',
	(int) 13 => '<p>In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.',
	(int) 14 => '<p>9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.',
	(int) 15 => '<p>10. Leave to appeal to Division Bench is prayed for but refused.<p>',
	(int) 16 => '<p>'
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9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.

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			'id' => '750811',
			'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100; <a href="/act/51108/indian-easements-act-1882-complete-act">Easements Act, 1882</a> - Sections 35',
			'appealno' => 'Second Appeal No. 352 of 1965',
			'appellant' => 'Manoharlal and anr.',
			'authreffered' => '',
			'casename' => 'Manoharlal and anr. Vs. Bheerulal and ors.',
			'casenote' => 'Easements Act, 1882 - Section (b)(a)--Threatened disturbance--Quantum of--Held, relief rightly refused in absence of allegation &amp; proof.
; Even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quia timet action, would on general principle be granted only if the threatend disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial dimunition of the same. It was therefore necessary in the present case for the plaintiffs to have established that there would be substantial dimunition of light and air coming through the window in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiff. In absence of an allegation and proof to that effect the learned District Judge was in my opinion right in refusing the relief or injunction in respect of the windows. - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' M.M. Vyas, Adv.',
			'counseldef' => ' M.C. Bhandari, Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1971-07-08',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' C.M. Lodha, J.',
			'judgement' => '<p style="text-align: justify;">C.M. Lodha, J. </p><p style="text-align: justify;">1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.</p><p style="text-align: justify;">2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.</p><p style="text-align: justify;">3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.</p><p style="text-align: justify;">4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.</p><p style="text-align: justify;">5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.</p><p style="text-align: justify;">6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.</p><p style="text-align: justify;">7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.</p><p style="text-align: justify;">Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--</p><p style="text-align: justify;">'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-</p><p style="text-align: justify;"> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;</p><p style="text-align: justify;"> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' </p><p style="text-align: justify;">8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,</p><p style="text-align: justify;">In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.</p><p style="text-align: justify;">9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.</p><p style="text-align: justify;">10. Leave to appeal to Division Bench is prayed for but refused.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'AIR1972Raj31; 1971(4)WLN287',
			'ratiodecidendi' => '',
			'respondent' => 'Bheerulal and ors.',
			'sub' => 'Property;Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'manoharlal-anr-vs-bheerulal-ors',
	'args' => array(
		(int) 0 => '750811',
		(int) 1 => 'manoharlal-anr-vs-bheerulal-ors'
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)
$title_for_layout = 'Manoharlal and anr Vs Bheerulal and ors - Citation 750811 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '750811',
		'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100; <a href="/act/51108/indian-easements-act-1882-complete-act">Easements Act, 1882</a> - Sections 35',
		'appealno' => 'Second Appeal No. 352 of 1965',
		'appellant' => 'Manoharlal and anr.',
		'authreffered' => '',
		'casename' => 'Manoharlal and anr. Vs. Bheerulal and ors.',
		'casenote' => 'Easements Act, 1882 - Section (b)(a)--Threatened disturbance--Quantum of--Held, relief rightly refused in absence of allegation &amp; proof.
; Even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quia timet action, would on general principle be granted only if the threatend disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial dimunition of the same. It was therefore necessary in the present case for the plaintiffs to have established that there would be substantial dimunition of light and air coming through the window in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiff. In absence of an allegation and proof to that effect the learned District Judge was in my opinion right in refusing the relief or injunction in respect of the windows. - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' M.M. Vyas, Adv.',
		'counseldef' => ' M.C. Bhandari, Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1971-07-08',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' C.M. Lodha, J.',
		'judgement' => '<p>C.M. Lodha, J. </p><p>1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.</p><p>2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.</p><p>3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.</p><p>4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.</p><p>5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.</p><p>6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.</p><p>7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.</p><p>Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--</p><p>'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-</p><p> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;</p><p> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' </p><p>8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,</p><p>In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.</p><p>9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.</p><p>10. Leave to appeal to Division Bench is prayed for but refused.<p></p><p>',
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		'pubs' => 'AIR1972Raj31; 1971(4)WLN287',
		'ratiodecidendi' => '',
		'respondent' => 'Bheerulal and ors.',
		'sub' => 'Property;Civil',
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		'circuit' => null
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$content = array(
	(int) 0 => '<p>C.M. Lodha, J. ',
	(int) 1 => '<p>1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.',
	(int) 2 => '<p>2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.',
	(int) 3 => '<p>3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.',
	(int) 4 => '<p>4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.',
	(int) 5 => '<p>5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.',
	(int) 6 => '<p>6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.',
	(int) 7 => '<p>7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
	(int) 8 => '<p>Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--',
	(int) 9 => '<p>'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-',
	(int) 10 => '<p> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;',
	(int) 11 => '<p> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' ',
	(int) 12 => '<p>8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,',
	(int) 13 => '<p>In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.',
	(int) 14 => '<p>9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.',
	(int) 15 => '<p>10. Leave to appeal to Division Bench is prayed for but refused.<p>',
	(int) 16 => '<p>'
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10. Leave to appeal to Division Bench is prayed for but refused.

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			'id' => '750811',
			'acts' => '<a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 100; <a href="/act/51108/indian-easements-act-1882-complete-act">Easements Act, 1882</a> - Sections 35',
			'appealno' => 'Second Appeal No. 352 of 1965',
			'appellant' => 'Manoharlal and anr.',
			'authreffered' => '',
			'casename' => 'Manoharlal and anr. Vs. Bheerulal and ors.',
			'casenote' => 'Easements Act, 1882 - Section (b)(a)--Threatened disturbance--Quantum of--Held, relief rightly refused in absence of allegation &amp; proof.
; Even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quia timet action, would on general principle be granted only if the threatend disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial dimunition of the same. It was therefore necessary in the present case for the plaintiffs to have established that there would be substantial dimunition of light and air coming through the window in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiff. In absence of an allegation and proof to that effect the learned District Judge was in my opinion right in refusing the relief or injunction in respect of the windows. - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
			'caseanalysis' => null,
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			'counselplain' => ' M.M. Vyas, Adv.',
			'counseldef' => ' M.C. Bhandari, Adv.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1971-07-08',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' C.M. Lodha, J.',
			'judgement' => '<p style="text-align: justify;">C.M. Lodha, J. </p><p style="text-align: justify;">1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.</p><p style="text-align: justify;">2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.</p><p style="text-align: justify;">3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.</p><p style="text-align: justify;">4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.</p><p style="text-align: justify;">5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.</p><p style="text-align: justify;">6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.</p><p style="text-align: justify;">7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.</p><p style="text-align: justify;">Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--</p><p style="text-align: justify;">'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-</p><p style="text-align: justify;"> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;</p><p style="text-align: justify;"> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' </p><p style="text-align: justify;">8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,</p><p style="text-align: justify;">In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.</p><p style="text-align: justify;">9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.</p><p style="text-align: justify;">10. Leave to appeal to Division Bench is prayed for but refused.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'AIR1972Raj31; 1971(4)WLN287',
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			'respondent' => 'Bheerulal and ors.',
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		'appealno' => 'Second Appeal No. 352 of 1965',
		'appellant' => 'Manoharlal and anr.',
		'authreffered' => '',
		'casename' => 'Manoharlal and anr. Vs. Bheerulal and ors.',
		'casenote' => 'Easements Act, 1882 - Section (b)(a)--Threatened disturbance--Quantum of--Held, relief rightly refused in absence of allegation &amp; proof.
; Even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quia timet action, would on general principle be granted only if the threatend disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial dimunition of the same. It was therefore necessary in the present case for the plaintiffs to have established that there would be substantial dimunition of light and air coming through the window in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiff. In absence of an allegation and proof to that effect the learned District Judge was in my opinion right in refusing the relief or injunction in respect of the windows. - INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman  Part time employees  Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either whole time or part time by the Legislature in the definition of working journalist in the Working Journalists and Other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955, does not mean that the definition of workman in the prior Act i.e. Industrial Disputes Act, 1947 intended to exclude part-time employees from the definition of workman. The expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. If a person fulfils the test of a workman, he cannot be excluded from the definition only on the ground that he is a part-time employee. However, the Court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. The control test is one of the important tests, but is not to be taken as the sole test. It is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. The other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. A full time worker usually works in a week for 40 hours or more depending on the award or agreement. If a person falls under the definition of workman under Section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the I.D. Act, and he will be entitled to all the benefits under the said Act. A perusal of Section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. Since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the I.D. Act. However, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. The control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. Since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person falls within the definition of workman under Section 2 (s) of the I.D. Act. Sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. Depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. Similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. However, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the I.D. Act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. If a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the Court will have to consider the nature of engagement in both the establishments. However, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the Court will take these facts into consideration.  -  The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' M.M. Vyas, Adv.',
		'counseldef' => ' M.C. Bhandari, Adv.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1971-07-08',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' C.M. Lodha, J.',
		'judgement' => '<p>C.M. Lodha, J. </p><p>1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.</p><p>2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.</p><p>3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.</p><p>4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.</p><p>5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.</p><p>6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.</p><p>7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.</p><p>Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--</p><p>'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-</p><p> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;</p><p> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' </p><p>8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,</p><p>In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.</p><p>9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.</p><p>10. Leave to appeal to Division Bench is prayed for but refused.<p></p><p>',
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	(int) 0 => '<p>C.M. Lodha, J. ',
	(int) 1 => '<p>1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.',
	(int) 2 => '<p>2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.',
	(int) 3 => '<p>3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.',
	(int) 4 => '<p>4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.',
	(int) 5 => '<p>5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.',
	(int) 6 => '<p>6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.',
	(int) 7 => '<p>7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.',
	(int) 8 => '<p>Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--',
	(int) 9 => '<p>'35. Injunctions to restrain disturbance subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-',
	(int) 10 => '<p> (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;',
	(int) 11 => '<p> (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.' ',
	(int) 12 => '<p>8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,',
	(int) 13 => '<p>In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.',
	(int) 14 => '<p>9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.',
	(int) 15 => '<p>10. Leave to appeal to Division Bench is prayed for but refused.<p>',
	(int) 16 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 17
$i = (int) 16
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Subject	Property;Civil
Court	Rajasthan High Court
Decided On	Jul-08-1971
Case Number	Second Appeal No. 352 of 1965
Judge	C.M. Lodha, J.
Reported in	AIR1972Raj31; 1971(4)WLN287
Acts	Code of Civil Procedure (CPC) , 1908 - Sections 100; Easements Act, 1882 - Sections 35
Appellant	Manoharlal and anr.
Respondent	Bheerulal and ors.
Appellant Advocate	M.M. Vyas, Adv.
Respondent Advocate	M.C. Bhandari, Adv.
Disposition	Appeal dismissed

Manoharlal and anr. Vs. Bheerulal and ors. - Court Judgment